Roberts Court

About: Roberts Court is a research topic. Over the lifetime, 397 publications have been published within this topic receiving 1468 citations.

In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial Restraint

Abstract: If the Senate confirms a full complement of members for the National Labor Relations Board, the Obama administration should ask the Supreme Court in Noel Canning v. NLRB to remand the case, without decision, to be re-heard by the NLRB. The court should grant the request, showing a judicial restraint for which the Roberts bench is not known — and returning the recess appointments controversy to the elected branches of government, where it belongs. If the SG does not pursue this course, the Court should use the political question doctrine to avoid unnecessary judicial interference with the dynamics of the President's and Senate's shared appointments power.

The Perils of Over-Constitutionalizing the Law: A Reply to Professor Epstein

Abstract: In “Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance”, I advance two primary claims. First, the Supreme Court’s categorical unwillingness to consider state-law reversals is nothing more than a self-imposed constraint from its 1874 decision in Murdock v. City of Memphis; this rule cannot be found in any of the external constitutional or statutory commands that limit the Supreme Court’s authority. Second, the status quo Murdock regime has induced the justices to issue questionable federal constitutional rulings in cases that they could have resolved more easily on state-law grounds. In a generous and spirited response, Professor Epstein defends the Murdock regime and attacks “the constitutional trope of ‘avoidance’” on which my claims largely rest. Professor Epstein’s defense of the status quo is based on a sunny assessment of the Supreme Court’s Murdock-induced constitutional pronouncements. It also rests on an unstated belief that Murdock will lead future Supreme Courts to issue constitutional rulings that he will find agreeable. But it is much harder for others to share Professor Epstein’s warm embrace of the Court’s Murdock-induced constitutional rulings – especially the adherents of originalism, Thayerism, minimalism, or common-law constitutionalism. And no one should believe that channeling future Supreme Court rulings into federal constitutional law is likely to produce happy endings. There is simply no way to know whether the Supreme Court in 2020 will resemble the Warren Court, the Roberts Court, or something else. Behind this veil of ignorance, a move away from Murdock represents a prudent risk-management strategy, a means of reducing the likelihood of bad constitutional entrenchments from a future Court whose composition cannot be known or controlled.

Temporal Adversarialism, Criminal Justice, and the Rehnquist Court: The Sluggish Life of Political Factfinding

Abstract: This paper argues that recent, arguably liberal criminal procedure decisions of the Rehnquist Court in its dying days were limited to issues involving adversarial factfinding - factfinding modeled on an ideal of deliberative jury decisionmaking based upon evidence resulting from competitive investigation by lawyer-adversaries. These decisions embraced a broad range of issues, including the Crawford, Blakely, and Hamdi cases, covering the Confrontation Clause, sentencing procedures, and military justice. The Court permits deviations from this ideal for good reasons - such as the special dangers created by the War on Terrorism - though the Court tries to minimize the degree of these deviations. But the Court's criminal procedure decisions outside this area, with the possible exception of the death penalty, have remained starkly conservative. The disparity in perspectives between these two areas, this paper concludes, is due to modern moderately conservative values inherent in the adversarial model, including, for example, a populist and anti-elitist preference for lay decisionmaking, localism, patriotism, and respect for the lessons of the past. The allure of these values, the paper maintains, may ensure the continuing appeal of temporal adversarialism (the word temporal emphasizing the importance of slow, deliberative decisionmaking and slow social change, if any) to the Roberts Court, a model that also has appeal to some liberal Justices.

The NEPA Implied Exemption Doctrine: How a Novel and Creeping Common Law Exemption Threatens to Undermine the National Environmental Policy Act

Abstract: Forty years ago, in Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma, the Supreme Court reserved a critical question that the federal courts have endeavored to answer. In so doing, the lower courts forged the novel common law doctrine of “implied exemption,” which releases agencies from National Environmental Policy Act obligations when they undertake “non-discretionary” actions. This Article tracks the development and consequences of this largely unnoticed but influential doctrine and concludes that, given the chance, the Roberts Court will uphold it. It also evaluates the doctrine’s impact on agency behavior and offers modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.